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Developments on immigration detention at the UN

Developments on immigration detention at the UN

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Published by LGBT Asylum News
Report by The International Detention Coalition (IDC)
Report by The International Detention Coalition (IDC)

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Published by: LGBT Asylum News on Feb 14, 2011
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08/07/2012

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Jo Hambling, Dec 2010
1
 The issue of immigration detention at the UN level:
Recent developments relevant to the work of the International Detention Coalition (IDC)January 2011
The International Detention Coalition (IDC) works to protect the rights of refugees, asylumseekers and migrants in immigration detention around the world. The IDC is a coalition of over 200 non-governmental groups and individuals working in over 50 countries. Coalitionmembers provide legal, social and other services; undertake research and reporting as wellas advocacy and policy work.Countries around the world are increasingly using detention as a migration management toolin an attempt to address irregular migration. Refugees and asylum seekers in particular, areincreasingly detained for long periods, in conditions below international standards, often withlittle or no access to asylum procedures and with no right to challenge their detention.
1
 Between January 2009 and mid-2010 immigration policies have been ‘characterized bygreater restrictions and fewer rights, with a clear trend towards introducing laws to deter andcriminalize asylum-seekers who arrived irregularly or overstayed their visas.’
2
 The IDC has been working at the international level, as well as regionally, to counter thistrend through education, networking, advocacy, reporting and research, with a particular focus on preventing and limiting the use of, seeking alternatives to, and using the leastrestrictive forms of, immigration detention. This report aims to provide a brief on recentdiscussions and developments on immigration detention at the UN level.Developments at the UN level over the last 18 months suggest there is growing internationalrecognition among UN agencies of the issue of immigration detention, particularly thedetention of children, and the importance of exploring and promoting alternatives toimmigration detention. For example, the Global Migration Group, an interagency groupcomprised mainly of UN entities, adopted a statement this year calling for States to reviewthe situation of migrants in irregular situations, as irregular migrants often face ‘prolongeddetention or ill-treatment.’
3
The statement also recognised that children are at particular risk.A list of recent UN meetings on immigration detention can be found in Appendix 1, and a fulllist of immigration detention references in UN statements and reports can be found at:http://idcoalition.org/idc-report-the-issue-of-immigration-detention-at-the-un-level/
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1
ExCom UNHCR,
 NGO Statement on International Protection (Agenda Item 5. a)),
October 2010, Geneva, p. 7http://www.unhcr.org/4caed7129.pdf viewed 23 August 2010.
 
2
UNHCR,
 Report of the United Nations High Commissioner for Refugees to the General Assembly,
October 2010, Geneva p. 7,http://www.unhcr.org/4cbea0d79.pdf 
 
viewed 23 August 2010.
3
Global Migration Group,
Statement of the Global Migration Group on the Human Rights of Migrants in Irregular Situation,
30 September 2010, Geneva,http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10396&LangID=Eviewed 24 September 2010.
 
2
International / UN level developments
 Whilst there is no UN body with a mandate solely dedicated to immigration detention,several UN bodies look at immigration detention within their wider mandates. This report willexamine the recent work of the following bodies in regard to immigration detention:1. The General Assembly2. The United Nations High Commissioner for Refugees (UNHCR)3. The Office of the High Commissioner for Human Rights (OHCHR)4. The Human Rights Council5. The Working Group on Arbitrary Detention6. The Special Rapporteur on the Human Rights of Migrants7. The Special Rapporteur on Torture and Other Cruel, Inhuman, or DegradingTreatment or Punishment
1. The General Assembly
The General Assembly is the main policymaking and representative organ of the UnitedNations and comprises all 192 members of the United Nations. The General Assembly hasrecently recognised the serious problem of immigration detention in two resolutions. Inresolution 63/184, adopted in 2009, the Assembly called upon States ‘to respect the humanrights and the inherent dignity of migrants and to put an end to arbitrary arrest anddetention.’
4
The Assembly called for periods of detention to be reviewed and alternatives todetention to be implemented.
5
The Assembly also noted with approval that some Stateshave adopted measures to reduce the detention of irregular migrants.
6
In 2010 the Assemblyagain adopted a resolution on the protection of migrants and repeated its calls for States toreduce the detention of undocumented migrants.
7
 
2. The United Nations High Commissioner for Refugees (UNHCR)
The UNHCR was established in 1950 by the United Nations General Assembly. The agencyis mandated to lead and co-ordinate international action to protect refugees and resolverefugee problems worldwide. The UNHCR’s Executive Committee (ExCom) meets inGeneva annually to review and approve the agency's programs and budget, advise oninternational protection and discuss a wide range of other issues. ExCom's StandingCommittee meets several times each year to carry on the body's work between plenarysessions. The UNHCR also holds annual consultations with NGOs.The UNHCR defines detention as follows: ‘Confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transitzones, where freedom of movement is substantially curtailed, and where the only opportunityto leave this limited area it to leave the territory.’
8
 
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4
UN General Assembly,
 Resolution, 63/184 Protection of Migrants
, 63
rd
sess, March 2009, para. 9,http://www.iom.int/jahia/webdav/shared/shared/mainsite/policy_and_research/un/63/A_RES_63_184_EN.pdf  viewed 18th October 2010.
5
ibid.
6
ibid, para. 13.
7
UN General Assembly,
 Resolution, 64/166 Protection of Migrants,
64
th
sess, March 2010, para 4,http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/471/79/PDF/N0947179.pdf?OpenElementviewed 18
th
October 2010.
 
8
ONHCR,
 Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers,
Geneva,1999, p. 3http://www.unhcr.org.au/pdfs/detentionguidelines.pdf viewed 1 November 2010.
 
3
 The UNHCR has been active on the issue of immigration detention for some time.
9
However,recently the UNHCR has given increasing weight to the problem of immigration detentionand particularly alternatives to the detention of refugees and asylum seekers. The issue of immigration detention featured significantly for the first time in the 2010 ExCom meetingsand the work of the IDC was also mentioned in ExCom’s 2010 Note on InternationalProtection. The Note states that to ‘address unjustified detention, UNHCR advocatesstrongly for the use of effective alternatives to detention’ and refers to a study conducted bythe IDC to illustrate the positive results of particular alternative policies.
10
 In 2008, 2009 and 2010 the IDC helped to run side meetings during the annual NGOconsultations on the topics of ‘Detention monitoring and human rights mechanisms’ and‘Alternatives to immigration detention.’ In addition, at the 2009 ExCom, UNHCR and the IDCheld a side meeting on alternatives to detention, attended by 30 governments. At the sidemeeting Ms. Erika Feller, Assistant High Commissioner for Protection, noted that althoughalternatives to detention have been discussed within the UNHCR for many years, thediscussion has led to few concrete suggestions.
 
She therefore announced that
 
the issue of detention would be given priority over the next year.
11
 The UNHCR does appear to have given priority to the issue of immigration detention duringthe last year. In April this year the UNHCR held its first regional roundtable on detentionalternatives in East Asia. The UNHCR also committed to further revising its 1999 Guidelineson the Detention of Asylum Seekers, and in early 2011, the UNHCR plans to launch a studyon alternatives to the detention of asylum seekers.
12
The UNHCR is also planning to hold aglobal ‘Alternatives to Detention’ roundtable.
13
Hopefully the UNHCR will continue to build onthis momentum and will use the revised guidelines and research to advocate more stronglyfor alternatives to detention to be implemented.
3. The Office of the High Commissioner for Human Rights (OHCHR)
The OHCHR is a United Nations agency that works to promote and protect human rights. Itwas established by the UN General Assembly in 1993. The office is headed by the HighCommissioner for Human Rights, who co-ordinates human rights activities throughout theUN System and supervises the Human Rights Council. The current High Commissioner isSouth African lawyer Navanethem Pillay.In September 2009, the UN High Commissioner remarked that the plight of ‘migrants, andparticularly migrants in an irregular situation, is one of today’s most critical human rightschallenges...Promoting a human rights-based approach to migration will be one of the

9
For example for conclusions relating to detention dating back to 1977 see UNHCR,
 A Thematic Compilation Of ExecutiveCommittee Conclusions
, 4th edition, August 2009,
 
 p. 136,http://www.unhcr.org/3d4ab3ff2.pdf viewed 6
th
September 2010.
10
ExCom UNHCR,
 Note on international protection
, 61
st
sess, 30 June 2010, para 40,http://www.unhcr.org/refworld/pdfid/4caaeabe2.pdf 
 
viewed 6th September.
 
11
International Detention Coalition,
 Report: Alternatives to Detention, UNHCR/IDC Side Meeting, ExCom, 30 Sep 2009
,2009,http://idcoalition.org/idcunhcr-alternative-to-detention-excom-meeting-notes/viewed 1
st
November 2010.
12
ExCom UNHCR,
 NGO Statement on International Protection
, October 2010, p. 7,http://www.reliefweb.int/rw/RWFiles2010.nsf/FilesByRWDocUnidFilename/SNAA-8A69A9-full_report.pdf/$File/full_report.pdf viewed 1 November 2010.
13
UNHCR,
2010 UNHCR Annual Consultations with NGOs,
2010, Geneva, p. 15,http://www.icva.ch/doc00004349.pdf  viewed 1 November 2010.
 

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